On Point blog, page 163 of 215
Double Jeopardy – Sentence: Defendant’s Fraud — No Expectation of Finality
State v. Ary L. Jones, 2002 WI App 208
For Jones: Arthur B. Nathan
Issue/Holding:
¶14. The rule we adopt in Wisconsin, therefore, is that when a defendant makes a fraudulent representation to the sentencing court and the court accepts and relies upon that representation in determining the length of the sentence, the defendant has no reasonable expectation of finality in the sentence. The court may later declare the sentence void and double jeopardy will not bar subsequent resentencing to place the defendant in the position he or she would have been in if the fraud or corruption had been exposed at the time of the original sentence.
Double Jeopardy – Successive Prosecutions: “Statutory Double Jeopardy,” § 939.71 – Conviction of Lesser Offense as Bar to Homicide Prosecution following Victim’s Subsequent Death
State v. Trevor McKee, 2002 WI App 148, PFR filed 6/28/02
For McKee: Kenneth P. Casey, SPD, Jefferson Trial
Issue/Holding: “(T)he prohibition against double jeopardy does not bar a prosecution for murder when the victim of an ‘assault and battery’ dies after a defendant has been convicted of the lesser offense. Diaz v. United States, 223 U.S. 442 (1912),” ¶6.
Due Process – Exculpatory Evidence — Lenient Treatment of Prosecution Witness
State v. Dale H. Chu, 2002 WI App 98, PFR filed 4/23/02
For Chu: Andrew Shaw
Issue: Whether defendant was denied his right to exculpatory evidence when the state failed to disclose that a prosecution witness had received favorable treatment in another case.
Holding:
¶37. As the State notes, prosecutions that end in dismissal and ordinance violations are not admissible to impeach a witness because they are not evidence that the witness has been convicted of a crime.”
Enhancer – § 939.62(2m)(d), Persistent Offender — Comparable Crime, Foreign Conviction – Determination
State v. Leonard T. Collins, 2002 WI App 177
For Collins: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding:
¶2. We agree with Collins that Wis. Stat. § 939.62(2m)(d) requires circuit courts to determine independently whether an out-of-state crime is comparable to a Wisconsin “serious felony,” even if the defendant admits that he or she is a persistent repeater. However, because we can conclude as a matter of law that “second degree murder”
Enhancers — § 939.62(2m), Persistent Offender — Comparable Crime, Foreign Conviction
State v. Charles J. Burroughs, 2002 WI App 18
For Burroughs: William F. Mross
Issue/Holding: Burroughs’ prior conviction in Alabama for assault with intent to murder is sufficiently comparable to attempted first degree intentional homicide so as to support exposure to persistent offender sentencing, § 939.62(2m)(c). ¶¶23-27.
Due Process – Notice of Charge – Vague Charging Period
State v. James D. Miller, 2002 WI App 197, PFR filed 8/2/02
For Miller: Matthew H. Huppertz, Craig Kuhary, Daniel P. Fay
Issue/Holding: The charging period of March 1, 1989, to March 31, 1993, was not too expansive to provide opportunity to prepare a defense, largely because of the victim’s youthfulness and vulnerable relationship (patient-therapist) to defendant, ¶31; and because the alleged offenses occurred during therapy sessions,
Equal Protection – Differential, County-Based Sentencing Guidelines
State v. Roland Smart, 2002 WI App 240, PFR filed 9/24/02
For Smart: Donald T. Lang, SPD, Madison Appellate
Issue: Whether sentencing-guideline disparity for driving while intoxicated under guidelines adopted by local counties pursuant to § 346.65(2m) violates equal protection or due process.
Holding: Sentencing guideline disparities need be supported only by rational basis for equal protection purposes, as “(i)t is not a fundamental right to be free from deprivations of liberty as a result of arbitrary distinctions.”
Enhancers — Applicability — Underlying Crime Required — Violation of Harassment Injunction (§ 813.125(4)) Subject to Enhancement
State v. Michael A. Sveum, 2002 WI App 105, PFR filed 5/10/02
For Sveum: Ian A.J. Pitz
Issue/Holding: A repeater enhancement applies only to a crime, which is an offense prohibited by state law and punishable by fine and/or imprisonment. Violation of harassment injunction fits this definition and therefore supports repeater enhancement. State v. Carpenter, 179 Wis. 2d 838, 508 N.W.2d 69 (Ct.
Enhancers — Collateral Attack on
State v. Charles J. Burroughs, 2002 WI App 18
For Burroughs: William F. Mross
Issue: Whether the record sufficiently supports Burroughs’ guilty plea on a prior offense supporting his persistent offender status.
Holding: Because Burroughs doesn’t contest the fact that he was represented by counsel when he entered the plea to the prior offense, his right to challenge the plea is barred under State v.
Enhancers — Multiple Enhancers — Computation of Maximum
State v. Paul Delao Quiroz, 2002 WI App 52
For Quiroz: Chad G. Kerkman
Issue: Whether the maximum penalty for first-degree reckless endangerment of safety, enhanced by while armed and gang-related provisions, was 13 or 14 years.
Holding:
¶13 … [State v. Pernell, 165 Wis. 2d 651, 656, 478 N.W.2d 297 (Ct. App. 1991)] establishes that when two penalty enhancers are applicable to the same crime,